Filed 8/11/17 In re Sanders CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.


IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE


In re DANNY RENEE SANDERS,
on Habeas Corpus. A148167

(Alameda County
Super. Ct. No. H6562)


Petitioner Danny Renee Sanders brings this habeas corpus petition to challenge a July 16, 2015 decision by the Board of Parole Hearings (Board) denying him release on parole. At the parole hearing, the Presiding Commissioner conceded that after his pre-hearing review of the record “I thought you had a good chance of going home.” However, both commissioners (1) found that during the hearing petitioner had lied to them about the information he had provided to the psychologist who prepared the risk assessment; (2) based this finding on their experience and a phone call made during the hearing; and (3) stated that, as a result of the lie, they were no longer willing to credit any information petitioner had provided. As a consequence, parole was denied. Because the record reflects no evidence supporting the determination petitioner lied, and because of the decisive role played by that determination in the parole denial, we conclude petitioner is entitled to a new parole suitability hearing.
BACKGROUND
I. The Commitment Offense
In June 1984, petitioner shot and killed his former girlfriend, Betty Ann Duke (or Coppes) and drove away in her car. (People v. Sanders (Dec. 10, 1987, A030872) [nonpub. opn.], p. 1.) At trial, petitioner testified that in the 24 hours preceding the murder he had ingested various drugs, and he did not recall killing the victim. (Id. at p. 2.) A jury convicted petitioner of first degree murder (Pen. Code, § 187) and auto theft (Veh. Code, § 10851), and petitioner was sentenced to a prison term of 27 years to life. (Id. at p. 1.)
II. Evidence Presented at the Parole Suitability Hearing
Petitioner’s minimum eligible parole date was October 3, 2003. The July 16, 2015 parole suitability hearing occurred during petitioner’s 30th year of imprisonment, when petitioner was 59 years old.
Petitioner testified that he went to live with his grandparents when he was approximately four years old because his mother opposed the heart surgery petitioner needed. Petitioner’s mother, who physically and emotionally abused petitioner, went to prison for stabbing petitioner’s father, and was released when petitioner was six or seven. Petitioner was expelled in ninth grade for a fight, then came back to school but dropped out in 11th grade after his grandparents died.
When petitioner was about 22, he committed a burglary and was put on probation for three years. Before that, petitioner had been placed in a juvenile detention camp in 1971 and 1972, for being incorrigible (with his grandparents, after petitioner resisted their efforts to force him to visit his mother in prison) and receiving stolen property. Petitioner was arrested twice for carrying a concealed weapon, and explained that he carried knives and guns to protect himself in a neighborhood in which everyone was carrying weapons. As petitioner related, the arrests did not change his behavior because he had developed a “belief system and . . . pattern of living” whereby he “made his own rules.”
Petitioner acknowledged having a substance abuse problem, and admitted using alcohol, methamphetamine and marijuana. Petitioner was under the influence of marijuana and alcohol at the time of the life crime, and estimated himself as being at “about a seven” on a scale of 1 to 10 in terms of intoxication.
Petitioner had been dating the victim for about nine months, and the relationship had ended about two weeks before the murder. Petitioner did not know why the relationship ended, but suggested the victim was tired of him leaving her with others while he went off to do his own thing. Petitioner denied ever pointing a gun at the victim’s head or beating her. When asked why the victim would tell her friends petitioner had beaten her and held a gun to her head, petitioner said he did not know, and at that time (in what he described as his “womanizing”) he knew various ways of control that did not require him to use threats of violence. Petitioner acknowledged the victim was fearful of him, because she knew he was violent and had seen him commit acts of violence. As one example, petitioner said had he beaten a man and “shot him up with some battery acid and some drugs.”
On the day of the crime, petitioner had a phone conversation with the victim, during which she demanded that he return her property to her. Petitioner refused to do so, after which the victim said, “I know where you’re laying your head.” Petitioner took this to be a threat since it meant she knew when he was vulnerable, and he told her that “messing with me and mine will get your brains blew out.” Petitioner then decided to “deal with this,” since at the time he “didn’t accept challenges and the only way [he] knew how to deal with things was through violence.”
Petitioner went to the victim’s apartment and looked through her car for his jewelry, which was not there. Petitioner then retrieved his gun from his car. The victim came out with a box of clothes, and started running after she saw petitioner. Petitioner chased her up the stairs, and while she was banging on the apartment door petitioner asked the victim if she had anything else to say. The victim said, “don’t, Daniel, don’t.” Petitioner shot the victim five times. While petitioner recalled the booming shots, he did not remember the actual events, explaining that his rage had taken over and while he was physically present, he was not consciously there. Petitioner later woke up in the victim’s car.
Petitioner stated he murdered the victim due to his lack of impulse control. He also said he was hurt because he felt rejected, and his rage took over. Petitioner admitted he was dating someone else at the time, and when asked why he killed the victim if that was true, he said he was enraged since “she had the nerve to challenge [him], to say [he] owed her something, and, at that time, [he] wasn’t having it.” Referring to the victim’s comment about knowing where petitioner was laying his head, petitioner said at that time he would “handle any kind of threat, big or small, with the same level of violence,” since that was how he was raised. While he denied that at that time he would shoot someone for threatening him, petitioner affirmed that he “would use violence.”
Presiding Commissioner John Peck then asked petitioner, “Are there other dead bodies that I don’t know about?” Petitioner’s answer exceeded the question’s scope: “No. I mean, I’ve shot a couple of people,” and stated that these incidents occurred between 1973 and 1975. Petitioner said he shot “[s]ome guy on 73rd and Lockwood” who had said “I just stabbed a dude around the corner, so don’t you be next,” and when petitioner saw a knife he “shot him three times with a .38.” Petitioner also said he shot a man in a park “[b]ecause he pulled out a gun and was telling [petitioner] what he would do to [petitioner].” He denied killing either of these men.
When asked why at that time he would respond so violently to people, petitioner said his mother responded violently with him, in that she would chase him down and beat him, making him grow up with a pattern of violence. As for his grandparents, petitioner relayed an incident when his grandfather fired shots after petitioner’s mother and father tried to take him, and his grandmother stood there with her pistol saying, “I’m not going to let them take you.” Petitioner described himself at that time as a “monster” and stated he had been carrying a firearm since he was 17 years old.
Petitioner was asked why the violent acts he had discussed at the hearing (the shootings and battery acid/drug injection) were not listed in the Risk Assessment (psychological report). Petitioner said the psychologist asked him about other acts of violence, and he had told her there were other incidents of violence and discussed both the street and park shootings. Presiding Commissioner Peck stated his belief that “that would’ve been an elevating factor in [petitioner’s] psychopathy rating.” The current psychological report before the Board concluded petitioner presented a low risk of violence.
Petitioner’s classification score is 19, which is as low as it can be given the commitment offense. Petitioner has received 18 serious disciplinary reports (CDCR-115’s), including three since his last parole hearing in 2007. He was disciplined for refusing to report to physical therapy in May 2009, for refusing a direct order in September 2008, and for refusing to work in January 2008.
The hearing panel reviewed petitioner’s positive prison programming, including his vocational training and prison work, completion of his GED and college courses, and participation in Alcoholics Anonymous and the Victim Offender Education Group (VOEG) and other self-help courses, including courses dealing with self-compassion, addiction recovery, alternatives to violence, and domestic violence. The panel noted that petitioner had prepared a written analysis of some of the self-help groups in which he participated, which detailed the information he learned in each course.
The panel also reviewed petitioner’s lengthy personal essay entitled “Development of Character and Personality Defects,” which petitioner described as “a fearless and searching inventory” of his character and personality defects and how they “created the callous, soulless, and emotionless animal [he] became” to “cold blood[ed]ly murder Betty Ann Dukes-Coppes on June 16, 1984.” Deputy Commissioner Patricia Cassady noted that the document was “somewhat disturbing” and there was “a lot of guns and violence” in his family. Commissioner Cassady observed that the document omitted mention of petitioner’s prior violence, and petitioner agreed those acts were part of the picture. Petitioner’s parole plans, letter of remorse to the victim, list of individuals petitioner had hurt, relapse prevention plan, statement of accountability, and letters of support from family and prison staff were also discussed. Petitioner expressed a desire to “go out there and stop . . . . the domestic violence,” which he stated, “comes from child abuse and there needs to be someone there in that cycle to reach these kids, especially these males, who grew up with this demented concept of what manhood is . . . . or else there’s going to be more tragic stories like this. There’s going to be more Bettys losing their lives.”
III. The Board’s Denial of Parole
Following its deliberations, the hearing panel found petitioner posed an unreasonable risk to public safety and was unsuitable for release on parole.
In articulating the reasons for its decision, the panel focused on petitioner’s statement that he had told the examining psychologist that he had been involved in the violent acts petitioner disclosed at the hearing. Commissioner Peck stated: “That’s a lie. Because the doctor’s going to put it in the report. I’ve been doing this for a long time. I even called. If someone reports something, even if it’s not listed . . . as an arrest, is it going to be listed? And the answer is yes. Every bit of information is going to be listed. Because those reports are written so we can make an analysis. . . . She’s making a report for us to make an assessment on whether you’re dangerous or not. That was a huge lie. And an unnecessary lie. You could have easily told me, I never told her. You know something, she never asked. . . . [I]f she didn’t have that information, then I may not take that low to be a low.” Commissioner Peck said this posed a credibility problem, and indicated he had some problems with petitioner’s version of the life crime since “it’s pretty clear that in all the reports that Betty was afraid of you” because of “what you did to her,” “[a]nd if you don’t know that by you beating someone and putting a gun in their face that they’re going to leave you, if you don’t understand that’s domestic violence, then you don’t have any insight into your life crime at all.”
Commissioner Peck said he did not believe petitioner: “You have no credibility. You can’t come in and lie to a Panel.” He said he could not believe petitioner’s childhood abuse because “[y]ou lie.” He continued, “when I prepped your case I thought you had a pretty good chance of going home. I wasn’t overly thrilled with your version of the life crime but I was hoping that you would come to some additional insights that you could tell us today. I was hoping you’d be honest.” However, Commissioner Peck said, “the nexus to current dangerousness is this . . . . if you can’t be honest with us, if you can’t be truthful, if you don’t have insight . . . you are at great risk to re-offend given those circumstances if they were to arise again.”
Commissioner Peck also stated, “[y]ou can’t even follow the rules which I probably wouldn’t have taken into a whole lot of consideration if I could believe you. But you’ve had three [CDCR-115s] since the last hearing. Granted they’re not violent, but they’re not following the rules. . . . If you don’t follow the instructions of the correctional officers, what makes me think you’re going to follow the rules of a parole agent?”
After complimenting petitioner on his educational and vocational programming, and for taking appropriate self-help courses and opening up in individual counseling, Commissioner Cassady echoed the Presiding Commissioner’s concerns about petitioner’s credibility: “Once we’ve been lied to once, then we don’t know when it’s occurring again.” Regarding the acts of violence petitioner had revealed at the hearing, Commissioner Cassady said that for petitioner “to indicate that they were taken into consideration when the Psychiatric Evaluation was prepared is just too much for either of us to believe,” since the clinician, who was well-trained, would at least have mentioned them.
The panel denied parole for a five-year period, for the reasons mentioned earlier in its decision.
DISCUSSION
“[T]he requirement of procedural due process embodied in the California Constitution (Cal. Const., art. 1, § 7, subd. (a)) places some limitations upon the broad discretionary authority of the Board.” (In re Rosenkrantz (2002) 29 Cal.4th 616, 655 (Rosenkrantz).) The courts have required that “certain procedural safeguards be observed by the Board in parole decisions.” (Id. at p. 657.)
Consistent with due process principles, courts determine “whether some evidence in the record before the Board supports the decision to deny parole, based upon the factors specified by statute and regulation.” (Rosenkrantz, supra, 29 Cal.4th at p. 658.) “If the decision’s consideration of the specified factors is not supported by some evidence in the record and thus is devoid of a factual basis, the court should grant the prisoner’s petition for writ of habeas corpus and should order the Board to vacate its decision denying parole and thereafter to proceed in accordance with due process of law.” (Ibid.)
“[W]hen a court reviews a decision of the Board or the Governor, the relevant inquiry is whether some evidence supports the decision of the Board or the Governor that the inmate constitutes a current threat to public safety, and not merely whether some evidence confirms the existence of certain factual findings.” (In re Lawrence (2008) 44 Cal.4th 1181, 1212 (Lawrence).) Additionally, “[t]he reviewing court does not ask whether the inmate is currently dangerous. That question is reserved for the executive branch. Rather, the court considers whether there is a rational nexus between the evidence and the ultimate determination of current dangerousness.” (In re Shaputis (2011) 53 Cal.4th 192, 221 (Shaputis).) “The basis for this judicial reticence is found in the separation of powers doctrine. The decision to grant or deny parole is vested in the executive branch, and its determinations are not to be second-guessed by the judicial branch. The reason there is any standard at all is to afford relief in cases where the decision of the Board or the Governor is arbitrary or capricious.” (In re Davidson (2012) 207 Cal.App.4th 1215, 1221.)
In reviewing the Board’s decision, we focus on the findings articulated by the Board, and evidence in the record pertaining to those findings. (In re Roderick (2007) 154 Cal.App.4th 242, 265 [“[I]t would be inappropriate for courts to salvage the Board’s inadequate findings by inferring factors that might have been relied upon” that were not articulated in the parole decision]; Shaputis, supra, 53 Cal.4th at pp. 214–215, fn. 11 [the Supreme Court has “never limited the scope of review to the evidence specified by the parole authority” and “has relied on evidence omitted from the decision below to conclude that findings were not supported by ‘some evidence.’ [Citations.] It would be a perversion of the deferential ‘some evidence’ standard if a reviewing court were permitted to go beyond the evidence mentioned by the parole authority to conclude that a finding lacks evidentiary support, but forbidden from doing so to confirm that a finding is supported by the record.”].)
The articulated driving force behind the Board’s parole suitability decision was the panel’s determination that petitioner was not credible. Specifically, the panel concluded petitioner had lied when he said he told the examining psychologist about the acts of violence disclosed at the hearing. The Board’s basis for this credibility finding was “arbitrary or procedurally flawed.” (Shaputis, supra, 53 Cal.4th at p. 221.)
While his statement that “I even called” suggests Commissioner Peck made a telephonic inquiry about this subject during a break in the parole suitability hearing, the record is bereft of evidence about who may have been called, what that person was asked, and what information was relayed. It certainly is not clear that the phone call was made to the examining psychologist, and that she denied that petitioner had told her about those other acts of violence. Our review of the record before the Board does not reveal any evidence, much less “some evidence,” supporting the Board’s finding that petitioner did not disclose his prior violent acts to the psychologist.
More fundamentally, from a due process perspective, the Board’s reliance on the contents of an ex parte communication occurring during the suitability hearing was improper under the regulations governing such hearings. At least 10 days before the parole suitability hearing, an inmate is entitled to review the materials that will be examined by the Board. (Pen. Code § 3041.5, subd. (a)(1); Cal. Code Regs., tit. 15, § 2247; see also In re Olson (1974) 37 Cal.App.3d 783.) Section 2247 states that “[n]o panel shall consider information not available to the prisoner unless the information is designated confidential under § 2235.” The Board did not designate the phone call confidential, or follow requisite regulatory procedures applicable to reliance on confidential information. (§ 2235.) The contents of the telephone call were not made available, or detailed, at the hearing, much less revealed to petitioner at least 10 days beforehand. The Board’s consideration of, and reliance on, information apparently gleaned during an off the record telephone call during the hearing manifestly violated the applicable regulations. “Where the rights of individuals are affected, it is incumbent upon agencies to follow their own procedures.” (Morton v. Ruiz (1974) 415 U.S. 199, 235.)
The Attorney General contends the Board members’ experience (details of which are not cited to nor are part of our record) supports the panel’s conclusion that the examining psychologist would not have omitted such significant acts of violence from the report. Although the commissioners’ experience may have led them to expect that a risk assessment would include such acts, the record does not disclose a basis for concluding that it was mandatory for the psychologist to include them in the report. Additionally, the record fails to reveal how a commissioner would know such information was absent from a report. In short, accepting the Attorney General’s contention on the record before us would require us to endorse a decision that is based on speculation. (Shaputis, supra, 53 Cal.4th at p. 219 [decision may not be based on “mere guesswork”]; Lawrence, supra, 44 Cal.4th at p. 1213 [decision “must be supported by some evidence, not merely by a hunch or intuition”].)
Further, while Commissioner Peck indicated that “[e]very bit of information is going to be listed” in the psychologist’s report, our review of the record reveals otherwise. For example, as petitioner aptly observes, prior risk assessments do not recount each and every criminal or violent act identified in the California Department of Justice’s transcript of petitioner’s criminal history. The mental health evaluation prepared for petitioner’s June 2002 hearing omits mention of eight items listed in petitioner’s criminal history transcript, including petitioner’s convictions for disturbing the peace and carrying a concealed weapon. The 2012 comprehensive risk assessment is even less detailed than the 2002 evaluation, and merely obliquely references petitioner’s “documented criminal history as an adult, primarily for misdemeanors for which he paid fines and served days in county jail.” As for the risk assessment prepared for the 2015 hearing, the examining psychologist referenced only three of petitioner’s prior crimes, not mentioning petitioner’s four other convictions or the weapon-related offenses.
From the record before us, it cannot be determined whether the hearing panel’s conclusion that petitioner lied about his conversation with the psychologist is correct, or whether, as petitioner asserts, he told the psychologist information about his prior violent acts. If petitioner did not, in fact, reveal those acts to the psychologist, then the Board would have had reason to discount the psychologist’s low risk assessment. (See In re Shippman (2010) 185 Cal.App.4th 446, 461–462 [Board appropriately discounted supportive psychological evaluations, where petitioner failed to open up to clinicians about the true nature and extent of his controlling behavior and violence towards women].) If, as petitioner claims, he did reveal his prior violent acts, yet the psychologist decided to omit them from her report, any “perceived failure of the evaluator cannot be laid at [petitioner’s] feet.” (In re Nguyen (2011) 195 Cal.App.4th 1020, 1036.)
Therefore, we are constrained to find that the record lacks some evidence to support the Board’s finding that petitioner lied about his disclosures to the examining psychologist, which provided the impetus for the parole denial. However, that is not the end of our analysis. If it is possible to conclude the Board would have reached the same decision absent that finding, we must uphold the parole denial. (Rosenkrantz, supra, 29 Cal.4th at p. 677; In re Dannenberg (2005) 34 Cal.4th 1061, 1100.)
In Rosenkrantz, after the Supreme Court found the Governor’s finding “regarding petitioner’s asserted lying about aspects of the crime in order to minimize his culpability” was not supported by some evidence, the court nevertheless upheld the parole denial since “the Governor’s decision made clear that he would have reached the same conclusion regarding parole suitability even without the determination that petitioner had lied about such matters.” (Rosenkrantz, supra, 29 Cal.4th at p. 677.) Similarly, this court upheld a parole denial after deciding that any error in the Board’s reliance on the commitment offense was harmless, where it was clear from the Board’s decision that it would have denied parole on other grounds, and the Board’s reference to the commitment offense was peripheral to its decision. (In re Reed (2009) 171 Cal.App.4th 1071, 1086–1087 (Reed).)
In contrast to Rosenkrantz and Reed, the record before us does not permit us to determine that the Board would have denied parole absent its unsupported finding. The panel’s finding that petitioner lied to them at the hearing about his disclosures to the examining psychologist more than influenced the decision—that finding framed the commissioners’ remaining findings. The conclusion that petitioner had lied caused the Board to discount the otherwise supportive psychological assessment, to doubt petitioner’s credibility about his statements at the hearing concerning the life crime, domestic violence and insight, and to doubt petitioner’s ability to follow the rules of a parole agent (in reference to three serious disciplinary reports since his last parole hearing in 2007). Commissioner Peck suggested that after his pre-hearing review of the record he was favorably inclined to petitioner, in that he thought he “had a pretty good chance of going home,” but petitioner’s purported lie at the hearing obviously led Commissioner Peck to reverse that thought. The hearing panel’s determination that petitioner had lied at the hearing had a powerful and unmistakably negative effect on the commissioners’ view of the subjects discussed in their decision, resulting in the parole denial.
Since we cannot conclude the Board would have reached the same decision absent its unsupported finding that petitioner had lied about disclosing his violent acts to the examining psychologist, petitioner is entitled to habeas corpus relief.
DISPOSITION
The Board’s July 16, 2015 decision is vacated, and the matter is remanded to the Board for a new parole suitability hearing, consistent with due process of law and this opinion, on an expedited basis. (In re Prather (2010) 50 Cal.4th 238, 244; see also id. at p. 262 (conc. opn. of Moreno, J.) [“Nothing in the majority opinion disallows the practice of ordering expedited parole hearings on remand.”].) In the interests of justice, this decision shall be final in this court fifteen days from the date of filing. (Cal. Rules of Court, rule 8.490(b)(2)(A).)






SIMONS, Acting P.J.



We concur.




NEEDHAM, J.




BRUINIERS, J.